Stage Six: Closure
The final stage of mediation occurs when the parties reach an agreement that resolves the dispute—or decide, with the help of the mediator, that they are going to end the session without reaching an agreement.
If an agreement is reached, the mediator will announce the agreement and review its terms with the parties, then (sometimes) the parties will sign the agreement or a memorandum that sets out the basic terms. If an agreement is not reached, the mediator announces this fact and ends the session. (For useful things you can do if your dispute does not settle in mediation, see Chapter 8.)1. Reaching an Agreement on Terms
“Closure” in mediation occurs at the moment you and the other side say “yes” to a proposed agreement. Mediation sessions tend to speed up as this point nears. By now, disputants are speaking directly to each other and probably using first names. Everyone is intimately familiar with the issues, so a kind of shorthand language typically develops that helps move the discussion along quickly. The mediator is also more direct in proposing refinements to possible settlement terms.
Your mediator will also be listening carefully to detect the first instance when a package of terms for settlement emerges from your negotiations. When this occurs, the mediator will seize the moment by stopping the discussion and reviewing the tentative terms of settlement. Neighbor Dispute: Mediator: “Ms. Ferraro, Mr. Rafferty, if I’m hearing you both correctly, I think you have reached agreement on all the major issues. I’ve tried to write them down in a very rough format. Let me read them to you and you tell me if I have it straight:
“On the noise issue, Mr. Rafferty is willing to turn off any amplified sound, including stereos and radios, in his backyard by 10 p.m. on weeknights and by midnight on weekends, and will encourage his guests not to use the pool after 10:45 on weeknights and midnight on weekends.
In the rare event this isn’t possible, he will insist that they conduct themselves quietly.“Ms. Ferraro, you will agree to call Mr. Rafferty directly, before calling the police, if you are disturbed again at night.
“On the dog issue, Mr. Rafferty agrees to call Ms. Ferraro directly, before calling police or animal control officers, if he thinks her dog has disturbed his trash barrels, soiled his lawn, or in any other way disturbed his property. For her part, Ms. Ferraro has agreed to buy Mr. Rafferty one dog-proof trash container; if replacement or additional containers are needed, Mr. Rafferty agrees to buy these at his own expense.”
Lease Dispute: Mediator: “I’m pleased to tell you both that in caucus each of you has told me you will agree to the same settlement terms. These include: 1) Ms. Sherman will return to United Tea $4,000, keeping $3,000 to cover damage to the office space, 2) United Tea employees may have access to the building next Thursday and Friday to remove product samples left in storage, 3) Ms. Sherman will post, in the building’s lobby, a prominent notice showing United Tea’s new address and phone, for a period of six months, and 4) none of the parties nor their employees will discuss with anyone outside their respective companies the nature of this dispute or the terms of its settlement.”
Business Ownership Dispute: Mediator: “Mike, Ted, I believe we have an agreement here. Ted, you have agreed to sell all of your stock in Big Slice Pizza, Inc., back to the company in exchange for an immediate lump-sum payment of $70,000, plus 8% of company gross revenues in the next fiscal year beginning October 1. Mike, you have agreed to lend the company $50,000 to allow it to make the cash payment to Ted. You have also agreed to prepare a contract to Ted’s satisfaction under which Big Slice Pizza will agree, for a period of three years beginning October 1, to buy all its imported cheese at market rates as quoted weekly in the ‘Cheese World’ price sheet from Pure Cheese, Inc., a company owned by Ted’s brother-in-law.”
Although the mediators in these three disputes may be acting as if these are the final agreements, they are actually still testing the terms to make sure that both parties really agree, and that they will be workable in the long run. They are also trying to make sure that there are no underlying issues, not mentioned in their recaps, that could cause the agreement to unravel.
Before the mediation goes further, carefully evaluate how satisfied you would be with the tentative terms of settlement. Just because the terms have been announced, you don’t have to accept them. If the mediator didn’t get it right, or if you just have second thoughts, say so. One good way to deal with doubts or worries is to request a caucus with the mediator to give yourself a chance to talk over the proposed terms and how they would affect you.
0 Never agree to things that you can't—or aren't willing to—do. If the proposed terms don’t look right to you, now is the time to say so.
Don’t wait until the agreement is in writing and everyone is standing around waiting for you to sign your name. At that point, the compulsion to sign may be too great, and you might end up signing an agreement you don’t believe in.
If you need a face-saving excuse to change your mind about some of the settlement terms, you can:
• blame it on the mediator (“I didn’t understand that this is what the mediator was proposing”)
• say you need to review it with your lawyer
• say you need to review it with another adviser, such as an accountant, member of the clergy, or trusted friend.
Once the mediator hears the parties say “okay” to the proposed terms, the deal is set. The mediator will mark the occasion by saying something like “We have an agreement.” Congratulations!
2. Ask to Have the Agreement Reviewed Before You Sign
It is always a good idea to put your mediation agreement in writing. And it’s absolutely essential if the terms are fairly complicated, as is often the case in business ownership, child custody, and employment disputes. A good written agreement:
• clarifies the decisions, intentions, and future behavior of the parties
• provides a permanent record of your agreement
• exposes issues that might be overlooked if not for the discipline of putting them in writing, and encourages compliance with the agreement.
(For more on the importance of written agreements—and tips on writing your own—see Chapter 7.)
In some minor consumer cases or interpersonal disputes, like our neighbor dispute example, your mediator may offer to draft the agreement while you wait, and you and the other party can both sign it before you leave.
But in more complicated cases, it will take some time and work by both parties (and possibly their lawyers or advisors) to get the language of an agreement just the way both sides want it. For example, an agreement over who can use a trademark must be prepared in a way that complies with U.S. Patent & Trademark Office rules. And if an agreement between businesses involves potentially serious tax consequences, the parties will want a tax advisor to review it. Similarly, if your dispute involves business contracts, property, or important legal rights, you should probably not sign the agreement until you have it reviewed by a lawyer, law coach, or other business advisor.Tell the mediator and the other party that you are pleased to have reached an agreement and that it looks fine to you, but you want a couple of days to run it by a lawyer or other adviser. You are entirely within your rights to make this request. The mediator will probably respond by offering to write an outline of the main terms of the agreement, giving each of you a copy and retaining the original. In the next chapter, we will discuss how your mediated agreement should be structured and drafted, how to have it reviewed by an advisor, what to do if you want to change it, and when and where you should sign it. ■